FIFTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 40939/05
by Vyacheslav Gennadiyevich KVASHKO
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 1 June 2010 as a Chamber composed of:
Peer Lorenzen, President,
Renate Jaeger,
Karel Jungwiert,
Rait Maruste,
Mark Villiger,
Isabelle Berro-Lefèvre,
Zdravka Kalaydjieva, judges,
and Stephen Phillips, Deputy Section Registrar,
Having regard to the above application lodged on 31 October 2005,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Vyacheslav Gennadiyevich Kvashko, is a Ukrainian national who was born in 1973. He is represented before the Court by Mr Gennadiy Tokarev, a lawyer practising in Kharkiv, Ukraine.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The applicant's arrest and detention
In the evening of 1 May 2005 following a family quarrel the applicant's wife called the police. At 5 p.m. the applicant was brought to the Ordzhonikidzevskiy District Police Department (Орджонікідзевський районний відділ Харківського міського управління МВС в Харківській області). After having searched the applicant, the police officers found some brown grass (according to different documents its amount varied from 2 to 7 grams) which the applicant said was tobacco in his pocket. The applicant was detained under Article 263 of the Code on Administrative Offences, which permits detention in order for a seized substance to be examined.
On 3 May 2005 the investigating officer questioned the applicant about a robbery which had taken place in the middle of April 2005, and the applicant allegedly confessed.
On 4 May 2005 the expert concluded that the brown grass found on the applicant was not a narcotic and it was decided not to institute criminal proceedings in that connection.
On the same day criminal proceedings were instituted against the applicant and some other persons in respect of the robbery. Later in the evening the applicant was arrested by an investigator in accordance with Article 115 of the Code of Criminal Procedure on suspicion of committing the robbery. It was indicated in the relevant decision that the applicant had been caught immediately after committing a crime and that he might escape.
The applicant's lawyer alleges that he was not allowed to see the applicant and that a number of important investigative actions were taken in his absence.
At 6 p.m. on 6 May 2005 the applicant was brought before a court, which authorised his pre-trial detention. The applicant did not provide a copy of this decision. On the same date the applicant was charged with robbery.
Following a complaint by the applicant's lawyer, on 13 May 2005 the court found the applicant's arrest on 4 May 2005 to have been unlawful.
On 12 July 2005 the criminal case was sent to the court for consideration on the merits.
On 2 August 2005 the Kharkiv Regional Court of Appeal quashed the decision of 13 May 2005. It found that the decisions of 6 and 13 May 2005 had been taken by the same judge but contained contradictory findings. It further held that the applicant should have appealed against the decision of 6 May 2005 and that the lawfulness of the applicant's further detention could be examined by the court which would consider the case on the merits.
2. Alleged ill-treatment, medical assistance and further investigation
The applicant states that during his detention between 1 and 3 May 2005 he was subjected to psychological and physical pressure. In particular, he alleges that the police officers put a plastic bag on his head and beat him. On one occasion he was hit in the left eye. Allegedly because of a previous head injury, sustained at the age of 15, and police beatings, the applicant's eyesight worsened.
On 6 May 2005 the applicant was examined by an ophthalmologist who established that he was suffering from a cataract and acute glaucoma of the left eye. He needed maintenance therapy and surgery.
On 27 May 2005 the applicant was again examined by an ophthalmologist. He was diagnosed with a retinal detachment in the left eye and surgery was recommended.
On 14 June 2005 the applicant's mother made an inquiry to the head of Kharkiv Temporary Detention Centre No. 27 (“the SIZO”) about the state of the applicant's health. On 29 June 2005 she received a reply informing her that the applicant had a retinal detachment in the left eye, but that the medical service of the SIZO did not have an ophthalmologist or sufficient funds to arrange for treatment. Therefore, it was advised that the applicant's mother arrange for him to undergo surgery in a specialised ophthalmological clinic.
On 4 July 2005 the applicant was examined by doctors of Ophthalmological Clinic No. 14. By that time he had already gone blind in the left eye and surgery was no longer possible.
On 21 December 2005 the applicant complained to the court, which was dealing with his criminal case, about being ill-treated by the police officers. According to the applicant, he had been afraid to lodge complaints earlier. The applicant's complaint was allegedly transferred to the prosecutor's office. The applicant did not provide a copy of this complaint.
On 2 June 2006 the applicant's sister complained to the prosecutor's office about the applicant's alleged ill-treatment.
On 19 June 2006 the Ordzhonikidzevskyy District Prosecutor's Office of Kharkiv refused to institute criminal proceedings upon the applicant sister's complaints. On 23 June 2006 this decision was quashed by a higher prosecutor and the case was remitted for further investigation.
On 11 July 2006 the same prosecutor's office again refused to institute criminal proceedings. It was found that on 6 May 2005 when the applicant had been brought to the hospital for examination, he had had no bruises on his face. On 10 May 2005 he was also examined by the doctor in the SIZO and no injuries were revealed. On 17 June 2005 the applicant underwent a psychiatric-forensic examination and it was mentioned, inter alia, that he had an eye injury as a result of a traffic accident in 2004. The prosecutor also stated that no complaints about ill-treatment had been lodged by the applicant or his lawyer in 2005 or 2006.
On 4 September 2006 the Kharkiv Regional Prosecutor's Office upheld that decision. The applicant did not challenge it in court.
3. Criminal proceedings against the applicant
On 13 April 2007 the Ordzhonikidzevskiy District Court convicted the applicant of burglary and stealing important personal documents and sentenced him to seven years' imprisonment and confiscation of half of his property. At the court hearing the applicant maintained his innocence and stated that he had been ill-treated during the pre-trial investigation. In reply the court referred to the findings of the prosecutor's office in the decision of 11 July 2006.
On 12 February 2009 the Kharkiv Regional Court of Appeal upheld that judgment. There is no evidence that the applicant appealed against this decision in cassation.
B. Relevant domestic law
1. Code on Administrative Offences of 7 December 1984
Under Article 263 of the Code persons who violate rules on drug circulation can be detained for three hours to draw up a report of administrative offence. In case of necessity, such as medical examination, drug examination or questioning about the circumstances of a drug purchase, the detention can be extended up to three days and, with the sanction of the prosecutor, up to ten days if the detainee does not have identification documents.
2. Code of Criminal Procedure, 1960 (with amendments)
Article 106 of the Code governs the arrest and detention of persons suspected of committing a criminal offence. It provides:
Article 106: Detention of a criminal suspect by the investigating body
“The investigating body shall be entitled to arrest a person suspected of a criminal offence for which a penalty in the form of deprivation of liberty may be imposed only on one of the following grounds:
1. if the person is discovered whilst or immediately after committing an offence;
2. if eyewitnesses, including victims, directly identify this person as the one who committed the offence;
3. if clear traces of the offence are found on the body of the suspect or on the clothing which he is wearing or which is kept at his home.
For each case of detention of a criminal suspect, the investigating body shall be required to draw up a record mentioning the grounds, the motives, the day, time, year and month, the place of detention, the explanations of the person detained and the time when it was recorded that the suspect was informed of his right to have a meeting with defence counsel before his first questioning, in accordance with the procedure provided for in paragraph 2 of Article 21 of the present Code. The record of detention shall be signed by the person who drew it up and by the detainee.
A copy of the record with a list of his rights and obligations shall be immediately handed to the detainee and shall be sent to the prosecutor. At the request of the prosecutor, the material which served as a ground for detention shall be sent to him as well.
The investigating body shall immediately inform one of the suspect's relatives of his detention ...
Within seventy-two hours of the arrest the investigating body shall:
(1) release the detainee if the suspicion that he committed the crime has not been confirmed, if the term of detention established by law has expired or if the arrest has been effected in violation of the requirements of paragraphs 1 and 2 of the present Article;
(2) release the detainee and select a non-custodial preventive measure;
(3) bring the detainee before a judge with a request to impose a custodial preventive measure on him or her.
If the detention is appealed against to a court, the detainee's complaint shall be immediately sent by the head of the detention facility to the court. The judge shall consider the complaint together with the request by the investigating body for application of the preventive measure. If the complaint is received after the preventive measure was applied, the judge shall examine it within three days of receiving it. If the request has not been received or if the complaint has been received after the term of seventy-two hours of detention, the complaint shall be considered by the judge within five days of receiving it.
The complaint shall be considered in accordance with the requirements of Article 165-2 of this Code. Following its examination, the judge shall give a ruling, either declaring that the detention is lawful or allowing the complaint and finding the detention to be unlawful.
The ruling of the judge may be appealed against within seven days from the date of its adoption by the prosecutor, the person concerned, or his or her defence counsel or legal representative. Lodging such an appeal does not suspend the execution of the court's ruling.
Detention of a criminal suspect shall not last for more than seventy-two hours.
If, within the terms established by law, the ruling of the judge on the application of a custodial preventive measure or on the release of the detainee has not arrived at the pre-trial detention facility, the head of the pre-trial detention facility shall release the person concerned, drawing up a record to that effect, and shall inform accordingly the official or body that carried out the arrest.”
Article 115 of the Code provides that an investigating officer shall be entitled to arrest a person suspected of committing a criminal offence on the same grounds and in accordance with the procedure outlined in Article 106 of the Code.
COMPLAINTS
The applicant complains under Article 3 of the Convention that he was tortured by the police between 1 and 3 May 2005 and was not provided with timely medical assistance in detention. He also complains under Article 13 of the Convention that the domestic remedies in respect of his complaints of ill-treatment were ineffective.
The applicant complains under Article 5 § 1 of the Convention that his arrest on 1 and 4 May 2005 and administrative detention were unlawful. The applicant further complains under Article 5 § 3 of the Convention that he was not brought promptly before a judge.
The applicant complains under Article 5 § 4 of the Convention that on 2 August 2005 the Court of Appeal failed to examine the arguments presented by his lawyer.
The applicant also complains under Article 5 § 4 of the Convention that he was not able to challenge his detention of his own motion during its pre-trial stage and that the current legislation does not provide for any procedural guarantees during examination of such motions by the courts after a case has been transferred to them for consideration on the merits.
The applicant also invokes Article 5 § 5 of the Convention.
The applicant finally complains under Article 6 § 1 of the Convention that he had an unfair trial and about the length of proceedings in his case.
THE LAW
A. Articles 3 and 5 §§ 1, 3 and 5 of the Convention
The applicant complains under Article 3 of the Convention that he was not provided with timely medical assistance in detention.
The applicant complains under Article 5 § 1 of the Convention that his arrest on 1 and 4 May 2005 and administrative detention were unlawful. The applicant further complains under Article 5 § 3 of the Convention that he was not brought promptly before a judge.
The applicant also invokes Article 5 § 5 of the Convention in this connection.
The Articles invoked provide as follows:
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 5
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
...
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
...
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
B. Other complaints
The Court, having examined the remainder of the applicant's complaints, considers that, in the light of all the materials in its possession and in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant's complaint under Article 3 of the Convention concerning the alleged lack of timely medical assistance in detention; and the applicant's complaints under Article 5 §§ 1, 3 and 5 of the Convention concerning the alleged unlawfulness of his arrest on 1 and 4 May 2005 and his administrative detention, lack of promptness of judicial review and availability of compensation;
Declares the remainder of the application inadmissible.
Stephen PhillipsPeer Lorenzen
Deputy RegistrarPresident
Full & Egal Universal Law Academy